Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Notes to Decisions
Personal discrimination; speech of public concern.
Right of access to the courts.
Generally.
Listing of cultural property on the state historical register did not violate the constitutional prohibition on the establishment of religion since ample evidence existed for listing the property as an historical site, including the area's documented archaeological and cultural significance, the primary effect of listing was to promote historic preservation, not to advance religion, and listing did not foster excessive government entanglement in religion. Rayellen Res., Inc. v. N.M. Cultural Props. Review Comm., 2014-NMSC-006, 319 P.3d 639, 2014 N.M. LEXIS 40 (N.M. 2014).
There is no generalized right not to speak under the First Amendment. State v. Dawson, 1999-NMCA-072, 127 N.M. 472, 983 P.2d 421, 1999 N.M. App. LEXIS 67 (N.M. Ct. App. 1999).
Statute is unconstitutionally overbroad, and thus offends the First Amendment, if it not only forbids conduct constitutionally subject to proscription but also sweeps within its ambit those actions ordinarily deemed to be constitutionally protected. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
New Mexico Highway Beautification Act, 66-12-1 NMSA 1978, did not deny an advertiser freedom of speech because it involved restrictions on commercial speech, not political or ideological speech. Stuckey's Stores v. O'Cheskey, 1979-NMSC-060, 93 N.M. 312, 600 P.2d 258, 1979 N.M. LEXIS 1242 (N.M. 1979).
Liberty of speech and of the press under the U.S. Const. amend. 1 implies not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. Curry v. Journal Publishing Co., 1937-NMSC-023, 41 N.M. 318, 68 P.2d 168, 1937 N.M. LEXIS 27 (N.M. 1937).
Actual malice.
Newspaper editor’s possible ill will toward police officers who would not cooperate in giving information for a news story, resulting in the editor’s publication of the officers’ names and addresses, was not “actual malice” as required for a libel suit. McNutt v. New Mexico State Tribune Co., 1975-NMCA-085, 88 N.M. 162, 538 P.2d 804, 1975 N.M. App. LEXIS 687 (N.M. Ct. App.), cert. denied, 88 N.M. 318, 540 P.2d 248, 1975 N.M. LEXIS 929 (N.M. 1975).
Applicability.
Section 30-37-3.2 NMSA 1978 is not unconstitutionally vague and overbroad, U.S. Const. amends. I, as it is narrowly tailored to the compelling interest of protecting children from online sexual predators, and because the statute applied to the facts of the case, defendant could not argue that the statute was unconstitutionally vague; the statute imposes no burden on legitimate interstate commerce and it addresses only the behavior relevant to its local purpose and thus could not be drafted in a less restrictive way. State v. Ebert, 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918, 2011 N.M. App. LEXIS 82 (N.M. Ct. App. 2011).
Imitation Controlled Substances Act, 30-31A-1 NMSA 1978 et. seq., was not unconstitutionally overbroad in violation of the first amendment because it regulated conduct, not speech. State v. Castleman, 1993-NMCA-019, 116 N.M. 467, 863 P.2d 1088, 1993 N.M. App. LEXIS 118 (N.M. Ct. App.), cert. quashed, 115 N.M. 795, 858 P.2d 1275, 1993 N.M. LEXIS 274 (N.M. 1993).
Where defendant was a bona fide member of the native american church, his use and possession of peyote was protected even though he was not native american because he had a right to exercise his religion under the U.S. Const. amend I. United States v. Boyll, 774 F. Supp. 1333, 1991 U.S. Dist. LEXIS 13514 (D.N.M. 1991).
Because 30-20-1 NMSA 1978 can be narrowly construed to punish only “fighting words,” it does not violate the First Amendment. State v. James M., 1990-NMCA-135, 111 N.M. 473, 806 P.2d 1063, 1990 N.M. App. LEXIS 150 (N.M. Ct. App. 1990).
Section 30-22-1D NMSA 1978 would offend U.S. Const. amends. I §§ and XIV and N.M. Const. art II § 17 if the prohibition therein against abusing police officers extended to speech that did not consist of “fighting words.” State v. Wade, 1983-NMCA-084, 100 N.M. 152, 667 P.2d 459, 1983 N.M. App. LEXIS 753 (N.M. Ct. App. 1983).
For the comments of a university professor to the board of regents at a board meeting to be accorded constitutional protection the comments had to be upon matters “of legitimate public concern”; where the professor engaged in vituperation and personal vilification of the university’s administration, such a diatribe did not serve to foster rational discourse, exchange of ideas, and meaningful discussion about a matter of legitimate public interest, which were the functions that “free speech” protections of the First Amendment were intended to foster. Lux v. Board of Regents, 1980-NMCA-164, 95 N.M. 361, 622 P.2d 266, 1980 N.M. App. LEXIS 969 (N.M. Ct. App. 1980), cert. denied, 454 U.S. 816, 102 S. Ct. 92, 70 L. Ed. 2d 84, 1981 U.S. LEXIS 3108 (U.S. 1981).
Authority of agency.
Government’s action in enacting legislation prohibiting its employees from running for public office does not in itself violate U.S. Const. amends. I; the New Mexico state police board, which derived its authority to promulgate rules from 29-2-22 NMSA 1978 could constitutionally prohibit a state police employee from running for or accepting political office. State ex rel. Harkleroad v. New Mexico State Police Bd., 103-NMSC-076, 1985-NMSC-076, 103 N.M. 270, 705 P.2d 676, 1985 N.M. LEXIS 1985 (N.M. 1985).
Burden of proof.
Air national guard colonel, a public official, was required to prove by clear and convincing evidence that a veteran’s organization and its president acted with actual malice in releasing defamatory statements. Sands v. American G.I. Forum, 1982-NMCA-044, 97 N.M. 625, 642 P.2d 611, 1982 N.M. App. LEXIS 812 (N.M. Ct. App. 1982).
Children.
The enactment of former 22-5-4.1 NMSA 1978, by the Legislature of the State of New Mexico exceeded scope of legislative power as circumscribed by the First and Fourteenth Amendments of the United States Constitution; former 22-5-4.1 NMSA 1978, and its implementation in the Las Cruces Public Schools violated the First Amendment of the United States Constitution; former 22-5-4.1 NMSA 1978, and its implementation in the Las Cruces Public Schools violated Article II, Section 11 of the Constitution of the State of New Mexico in that it gives a preference by law to a particular mode of worship. Duffy v. Las Cruces Public Schools, 557 F. Supp. 1013, 1983 U.S. Dist. LEXIS 19341 (D.N.M. 1983).
Because the evidence established the intent on the part of certain defendant teachers, nuns and brothers in Roman Catholic parochial schools that were supported by public funds within a public school system, to violate former § 55-1102, 1941 Comp., which forbade the use of any sectarian or denominational books in the schools or the teaching of sectarian doctrine in the schools, the Supreme Court of New Mexico determined that those defendant teachers were forever barred from teaching in the public schools, that religious garb and religious insignia could not be worn by teachers while teaching in public schools, and that a church could not be permitted to operate a school system within the public school system; the schools in question violated the separation of church and state provisions of U.S. Const. amends. I and amend. XIV and the provisions of N.M. Const. art. 9, § 14, art. 12, §§ 3, 9, and art. 21, § 4. Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949, 1951 N.M. LEXIS 773 (N.M. 1951).
Church autonomy doctrine.
Rabbi’s wrongful termination suit against congregation was properly dismissed by trial court pursuant to the church autonomy doctrine, which states that the selection of church ministers and church operations are purely ecclesiastical concerns and protected from civil interference or entanglement under the First Amendment. Although there may be limited exceptions to this rule, namely in cases of sexual harassment or retaliation, the facts of this case did not fall within such an exception. Celnik v. Congregation B'nai Israel, 2006-NMCA-039, 139 N.M. 252, 131 P.3d 102, 2006 N.M. App. LEXIS 11 (N.M. Ct. App. 2006).
Computers.
Preliminary injunction against enforcement of 30-37-3.2 NMSA 1978, which criminalized the dissemination by computer of material that was harmful to minors, was proper because organizations and entities that communicated on the internet showed that the statute likely violated U.S. Const. amends. I and Commerce Clause. ACLU v. Johnson, 194 F.3d 1149, 1999 U.S. App. LEXIS 28402 (10th Cir. N.M. 1999).
Criminalized speech.
District court erred in finding that plaintiff's speech, which was addressed to police officers, fell within the fighting words exception to the First Amendment. However, because it was not clear at the time that plaintiff was arrested whether a claim for retaliatory arrest would lie when probable cause supported the arrest, defendants were entitled to qualified immunity on this claim. Benavidez v. Shutiva, 2015-NMCA-065, 350 P.3d 1234, 2015 N.M. App. LEXIS 40 (N.M. Ct. App. 2015).
Statute is unconstitutionally overbroad if it criminalizes speech that is protected by the First Amendment. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Defenses.
Mere allegation that statements in a published article implied malfeasance in office was insufficient to support a claim of defamation where the elected official did not show the falsity of the statements. Andrews v. Stallings, 1995-NMCA-015, 119 N.M. 478, 892 P.2d 611, 1995 N.M. App. LEXIS 8 (N.M. Ct. App. 1995).
Because the fair comment exemption and constitutional privilege protected a disputed advertisement, and the use of words in a loose pejorative sense was protected opinion under U.S. Const. amends. I, court properly granted summary judgment for a newspaper and others in defense attorney’s action for libel. Marchiondo v. New Mexico State Tribune Co., 1981-NMCA-156, 98 N.M. 282, 648 P.2d 321, 1981 N.M. App. LEXIS 835 (N.M. Ct. App. 1981), cert. quashed, 98 N.M. 336, 648 P.2d 794, 1982 N.M. LEXIS 2948 (N.M. 1982).
Defendant’s assertion on appeal that his convictions of possession and distribution of marijuana violated his right to the free exercise of his religion under U.S. Const. amends. I and N.M. Const. art XXI § 1 was rejected; defendant failed to show that his belief concerning marijuana was religious and that his conduct in using and distributing marijuana was religiously-grounded conduct. State v. Brashear, 1979-NMCA-027, 92 N.M. 622, 593 P.2d 63, 1979 N.M. App. LEXIS 806 (N.M. Ct. App. 1979).
Dismissal.
Because certain government positions required political loyalty, a person holding such a position was not protected by U.S. Const. amends. I against being dismissed for political reasons. Sanders v. Montoya, 1999-NMCA-079, 127 N.M. 465, 982 P.2d 1064, 1999 N.M. App. LEXIS 49 (N.M. Ct. App. 1999).
In an action by an inmate against certain prison employees after the inmate was placed in disciplinary segregation and ordered to pay restitution for destroying state property at the prison, the trial court properly granted the prison employees’ Rule 1-012(B)(6) NMRA motion to dismiss as to the inmate’s liberty interest-based federal due process claims because the disciplinary action to which he was subjected did not implicate or impinge upon a protected liberty interest; however, because of the general lenity with which the pro se inmate’s complaints were read, the inmate adequately raised a due process property claim as to the imposition of restitution, and his U.S. Const. amends. I claim of retaliation, which was alleged to have occurred because of the inmate’s filing of two grievances, was not barred by the prison employees’ qualified immunity. Griffin v. Thomas, 1997-NMCA-009, 122 N.M. 826, 932 P.2d 516, 1997 N.M. App. LEXIS 2 (N.M. Ct. App. 1997).
Education.
With respect to some defendants’ convictions for assertedly violating former 40A-20-10, 1953 Comp. (now 30-20-13 NMSA 1978), by interfering with university business through a sit-in at the university president’s office, for purposes of U.S. Const. amends. I §§ 40A-20-10 was not unconstitutionally vague or overbroad, was facially valid, and was valid as applied. State v. Silva, 1974-NMCA-072, 86 N.M. 543, 525 P.2d 903, 1974 N.M. App. LEXIS 689 (N.M. Ct. App.), cert. denied, 86 N.M. 528, 525 P.2d 888, 1974 N.M. LEXIS 1439 (N.M. 1974).
Elections.
Judicial candidate’s challenge under this provision to the limitations under 1-19A-5 NMSA 1978 was not addressed because he voluntarily chose to join a public funding system. If he had not chosen to seek public financing, he would not have been subject to any restrictions on contributions or expenditures. Montoya v. Herrera, 2012-NMSC-011, 276 P.3d 952, 2012 N.M. LEXIS 135 (N.M. 2012).
New Mexico Secretary of State was required to impose a civil penalty upon a judicial candidate for violations of the New Mexico Voter Action Act; the penalty was not an unconstitutional infringement upon his right to free speech, a showing of scienter was not necessary to support the imposition of the penalty, and the restrictions upon the amount of money that the candidate could have contributed to his own campaign was completely unrelated to the content of his speech. Moreover, to the extent that the candidate sought to equate a civil penalty under 1-19A-17A NMSA 1978 with a Rule 1-011 NMRA penalty for which a showing of willful misconduct is required, the requirements of Rule 1-011 had no bearing on what the candidate was prohibited from doing under the Act. Montoya v. Herrera, 2012-NMSC-011, 276 P.3d 952, 2012 N.M. LEXIS 135 (N.M. 2012).
Equal protection.
Former 40A-6-1, 1953 Comp. (now 30-6-1 NMSA 1978) was not an unconstitutional denial of equal protection on the ground that the statute condemned child abuse whether intentional, knowing, or negligent, as (1) children were in need of greater protection than adults, and (2) a stricter penalty was one means of attaining this greater degree of protection. State v. Lucero, 1975-NMCA-007, 87 N.M. 242, 531 P.2d 1215, 1975 N.M. App. LEXIS 616 (N.M. Ct. App.), cert. denied, 87 N.M. 239, 531 P.2d 1212, 1975 N.M. LEXIS 791 (N.M. 1975).
Evidence.
Trial court properly granted defendants’ motion to suppress evidence obtained from the seizure of a digital camera from their residence during a child pornography investigation because there was no substantial basis for concluding that there was probable cause that the camera would contain child pornography. The appellate court’s holding was made with consideration of the First Amendment concerns that came into play when a camera was searched. State v. Gurule, 2011-NMCA-063, 150 N.M. 49, 256 P.3d 992, 2011 N.M. App. LEXIS 40 (N.M. Ct. App. 2011), rev'd, 2013-NMSC-025, 303 P.3d 838, 2013 N.M. LEXIS 180 (N.M. 2013).
—Admissible.
The evidence that was obtained during the execution of a search warrant was admissible where the warrant referenced the general nature of the items to be seized and was sufficiently particular to convey to the officers the items that were to be seized; although a search warrant would infringe upon First Amendment rights if it acted as a prior restraint of protected material, no such rights were implicated because the warrants were issued not because of the ideas that were contained in the material but, instead, to corroborate testimony. State v. Patscheck, 2000-NMCA-062, 129 N.M. 296, 6 P.3d 498, 2000 N.M. App. LEXIS 48 (N.M. Ct. App.), cert. denied, 129 N.M. 249, 4 P.3d 1240, 2000 N.M. LEXIS 248 (N.M. 2000), cert. denied, 129 N.M. 249, 4 P.3d 1240, 2000 N.M. LEXIS 250 (N.M. 2000).
Governmental immunity.
21-1-18 NMSA 1978 did not grant a New Mexico junior college’s board immunity from personal liability from a college employee’s 42 U.S.C.S. § 1983 claim, which alleged that his employment had been terminated in retaliation for exercising his U.S. Const. amends. I rights. Leach v. N.M. Junior College, 2002-NMCA-039, 132 N.M. 106, 45 P.3d 46, 2002 N.M. App. LEXIS 17 (N.M. Ct. App.), cert. denied, 132 N.M. 83, 44 P.3d 529, 2002 N.M. LEXIS 135 (N.M. 2002), cert. denied, 132 N.M. 83, 44 P.3d 529, 2002 N.M. LEXIS 139 (N.M. 2002).
Injunction.
City was not entitled to injunctive relief enjoining bookstore from continuing its operation because the city ordinance that regulated the operation of adult bookstores was unconstitutionally vague and in violation of the First Amendment as it failed to define with specificity the facilities near which the bookstores could not operate. Harris Books v. Santa Fe, 1982-NMSC-078, 98 N.M. 235, 647 P.2d 868, 1982 N.M. LEXIS 2877 (N.M. 1982).
Instructions.
In a city clerk’s action against a city and the city manager, based on free speech claims under U.S. Const. amends. I, the city clerk’s award of punitive damages had to be reconsidered to balance the city’s interests in providing public services and the city clerk’s free speech rights, because the trial court’s jury instruction included speech that was not a matter of public concern. Martinez v. City of Grants, 1996-NMSC-061, 122 N.M. 507, 927 P.2d 1045, 1996 N.M. LEXIS 429 (N.M. 1996).
In defendant’s trial for distributing obscene material, in violation of a county ordinance, the trial court was not required to instruct the jury that the geographical area encompassed by the applicable community standard extended beyond the county. State v. Johnson, 1986-NMCA-055, 104 N.M. 430, 722 P.2d 681, 1986 N.M. App. LEXIS 620 (N.M. Ct. App. 1986).
Illustrative cases.
Statements in a newspaper column that allegedly described a city councilman’s involvement in corruption, dishonesty, and criminal activity and that falsely linked him to the Mexican Mafia were non-actionable opinions; the column was situated on the opinion page, the tag line indicated that it was fictitious, and it disclosed the factual basis for the writer’s opinion, so the publisher and other defendants were granted summary judgment in the councilman’s libel action. Mendoza v. Gallup Indep. Co., 1988-NMCA-073, 107 N.M. 721, 764 P.2d 492, 1988 N.M. App. LEXIS 85 (N.M. Ct. App. 1988).
In a defamation action brought by an ex-union member against the union, which wrote a letter to another organization to which the ex-union member belonged attacking her character for crossing a picket line, the union’s letter was an expression of contempt of strikebreakers and was protected by First Amendment freedom of speech as rhetorical hyperbole. Communications Workers of Am., Local 8611 v. Archibeque, 1987-NMSC-035, 105 N.M. 635, 735 P.2d 1141, 1987 N.M. LEXIS 3579 (N.M. 1987).
Church argued that its right to use its property for school purposes was protected by the Free Exercise Clause of U.S. Const. amends. I and N.M. Const. art II § 11; however, the city could impose rational and reasonable zoning restrictions on the church, and there was no challenge to the trial court’s findings that the operation of a church school in a residential area would create a safety hazard, disturb the peace and quiet of the neighborhood, and unduly increase the noise level in the neighborhood. Las Cruces v. Huerta, 1984-NMCA-120, 102 N.M. 182, 692 P.2d 1331, 1984 N.M. App. LEXIS 733 (N.M. Ct. App. 1984).
Journalist arrested while covering a protest at a government construction site for a nuclear waste site had no special First Amendment protection when he violated a barricade and entered a government construction site in a nuclear waste plant project area, thus his state conviction for criminal trespass was upheld on appellate review. State v. McCormack, 1984-NMCA-042, 101 N.M. 349, 682 P.2d 742, 1984 N.M. App. LEXIS 652 (N.M. Ct. App. 1984).
Prohibition against nude dancing in a licensed liquor establishment does not violate the free speech provision of N.M. Const. art II § 17 because the broad powers of the states to regulate the sale of liquor, conferred by U.S. Const. amends. XXI, outweighs any U.S. Const. amends. I interest in nude dancing; thus, the state can ban such dancing as a part of its liquor license program. Nall v. Baca, 1980-NMSC-138, 95 N.M. 783, 626 P.2d 1280, 1980 N.M. LEXIS 2762 (N.M. 1980).
New Mexico Highway Beautification Act, 67-12-1 et seq. NMSA 1978, does not abridge the guarantee of freedom of speech in violation of the United States and New Mexico Constitutions. Stuckey's Stores v. O'Cheskey, 1979-NMSC-060, 93 N.M. 312, 600 P.2d 258, 1979 N.M. LEXIS 1242 (N.M. 1979).
While former 40A-15-3, 1953 Comp. (now 30-15-4 NMSA 1978) made it a crime to deface churches, it did not advance religion or violate the establishment clauses of U.S. Const. amends. I, as made applicable to the states pursuant to U.S. Const. amends. XIV. State v. Vogenthaler, 1976-NMCA-030, 89 N.M. 150, 548 P.2d 112, 1976 N.M. App. LEXIS 564 (N.M. Ct. App. 1976).
Media.
—Coverage effect.
In deciding whether to exclude media coverage of a particular participant, the trial judge should require evidence sufficient to support a finding that such coverage will have a substantial effect upon the particular individual which would be qualitatively different from the effect on members of the public in general and that such effect will be qualitatively different from coverage by other types of media. State ex rel. New Mexico Press Ass'n v. Kaufman, 1982-NMSC-060, 98 N.M. 261, 648 P.2d 300, 1982 N.M. LEXIS 2864 (N.M. 1982).
—Notice.
Before placing restrictions on the media in a criminal case, some minimum form of notice should be given to the media and a hearing held. Anyone present should be given an opportunity to object. State ex rel. New Mexico Press Ass'n v. Kaufman, 1982-NMSC-060, 98 N.M. 261, 648 P.2d 300, 1982 N.M. LEXIS 2864 (N.M. 1982).
—Restraint test.
Three prong test is used to judge restraints on the media: (1) what is the nature and extent of the evil of publication; (2) are there any alternatives to imposing a gag order; and (3) were the means selected adequately tailored to accomplish the ends sought? State ex rel. New Mexico Press Ass'n v. Kaufman, 1982-NMSC-060, 98 N.M. 261, 648 P.2d 300, 1982 N.M. LEXIS 2864 (N.M. 1982).
Municipal ordinances.
Where a city appealed a judgment declaring an ordinance which pertained to the regulation of signs unconstitutional, the sign ordinance was a valid exercise of the city’s police power, was within the city’s zoning authority, and did not abridge freedom of speech. Temple Baptist Church v. Albuquerque, 1982-NMSC-055, 98 N.M. 138, 646 P.2d 565, 1982 N.M. LEXIS 2849 (N.M. 1982).
Obscene telephone calls.
30-20-12 NMSA 1978 is directed at conduct; the making of the call is the prohibited act, not the speaking of any particular words; therefore, 30-20-12 NMSA 1978 is not unconstitutionally overbroad. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Statute proscribing obscene telephone calls, construed as proscribing only calls initiated by one with intent and with the sole purpose of conveying an unsolicited, obscene, imminently threatening, or harassing message to an unwilling recipient, is neither unconstitutionally vague nor overbroad. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Personal discrimination; speech of public concern.
Where employees complained about a medical supervisor’s systematic mistreatment of them, the employees’ complaints were not of a public concern because it addressed only their personal discrimination. Nieto v. Kapoor, 182 F. Supp. 2d 1114, 2000 U.S. Dist. LEXIS 21855 (D.N.M. 2000).
Petition.
Individual was not deprived of a First Amendment or N.M. Const. art II § 18, right where he was able to and had petitioned the government to adopt a bill permitting the manufacture and on-site sale of micro-distilled liquor and spirits; there were no procedural protections requiring the government to consider the information he provided or his petition. Bonadeo v. Lujan, No. CIV 08-0812 JB/ACT, 2009 U.S. Dist. LEXIS 45671 (D.N.M. Apr. 30, 2009).
Right of the people to petition the government for a redress of grievances is guaranteed by the U.S. Const. amends. I. Jiron v. Mahlab, 1983-NMSC-022, 99 N.M. 425, 659 P.2d 311, 1983 N.M. LEXIS 2248 (N.M. 1983).
Political endorsement.
Prohibition of public endorsement of a political candidate by a judge was constitutional under the First Amendment, as it was carefully and narrowly drawn to serve a state interest in a judiciary that was impartial in fact and appearance. Therefore, judge’s endorsement of a mayor’s reelection warranted reprimand. Inquiry Concerning a Judge (Vincent), 2007-NMSC-056, 143 N.M. 56, 172 P.3d 605, 2007 N.M. LEXIS 600 (N.M. 2007).
Prior restraint of press.
Where a theatre owner was enjoined from showing allegedly immoral motion pictures, pursuant to former 40-34-15 to 40-34-19, 1953 Comp., the injunction constituted a prior restraint of the press and was impermissible under N.M. Const. art. 11, § 17, and the U.S. Const. amends. I and XIV because “lewdness” as used in former 40-34-15 to 40-34-19, 1953 Comp., did not apply to the showing of motion pictures in a regular business establishment, as it did not include acts not connected with assignation or prostitution. State ex rel. Murphy v. Morley, 1957-NMSC-087, 63 N.M. 267, 317 P.2d 317, 1957 N.M. LEXIS 966 (N.M. 1957).
Public utilities.
New Mexico Public Service Commission rule on advertising, which did not ban any speech but only reasonably required that the cost of certain advertising not be passed on to a utility’s captive customers, the ratepayers, did not unconstitutionally abridge utility companies’ freedom of speech. El Paso Elec. Co. v. New Mexico Pub. Serv. Comm'n, 1985-NMSC-085, 103 N.M. 300, 706 P.2d 511, 1985 N.M. LEXIS 1995 (N.M. 1985).
Requirements.
In determining what speech will be protected by the First Amendment, courts must balance the right to free speech against other state interests. Where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. State v. Gattis, 1986-NMCA-121, 105 N.M. 194, 730 P.2d 497, 1986 N.M. App. LEXIS 681 (N.M. Ct. App. 1986).
Retaliation.
To prove retaliation in violation of the First Amendment, employees must first prove that their speech was constitutionally protected; the speech is protected if it involves a matter of public concern and the employees’ interest commenting on matters of public concern outweigh the interests of the employer in promoting the efficiency of the public service it performs. Second, the employees must prove that their speech was a substantial or motivating factor in a defendant’s decision to retaliate against the employees; a defendant can defend against this claim if he can prove that he would have reached the same decision in the absence of the employees’ protected speech. Nieto v. Kapoor, 182 F. Supp. 2d 1114, 2000 U.S. Dist. LEXIS 21855 (D.N.M. 2000).
Where an employee complained about the care female patients received from a medical supervisor and the supervisor’s treatment of the employee worsened after her complaints, the employee was retaliated against and her speech was that of a public concern due to the fact that it dealt with patient care. Nieto v. Kapoor, 182 F. Supp. 2d 1114, 2000 U.S. Dist. LEXIS 21855 (D.N.M. 2000).
Building inspector’s conduct in searching a software company’s building on two occasions without a warrant or consent, violated the free speech and freedom of association of the owners of the company because the owners’ speech in criticizing the inspector was of a public concern, the owners’ relationship with a council member was constitutionally protected, and the building inspector’s conduct was not objectively reasonable. MIMICS, Inc. v. Vill. of Angel Fire, 277 F. Supp. 2d 1131, 2003 U.S. Dist. LEXIS 14346 (D.N.M. 2003), aff'd in part and rev'd in part, 394 F.3d 836, 2005 U.S. App. LEXIS 15 (10th Cir. N.M. 2005).
Where a male employee complained about a medical supervisor’s mistreatment of female employees, his complaint was of a public concern and thus, he was retaliated against, in violation of the First Amendment, where the supervisor subsequently complained of the male employee’s work. Nieto v. Kapoor, 182 F. Supp. 2d 1114, 2000 U.S. Dist. LEXIS 21855 (D.N.M. 2000).
Right of access to the courts.
Given the safety concerns inherent in the Environment Department’s approval of wells, it was objectively reasonable for the Department to deny the corporation’s well permit applications and the corporation was not being retaliated against for appealing a magistrate’s decision; thus the Department’s action did not violate the corporation’s right of access to the courts. Moongate Water Co. v. State, 1995-NMCA-084, 120 N.M. 399, 902 P.2d 554, 1995 N.M. App. LEXIS 83 (N.M. Ct. App. 1995).
Sale of alcohol.
60-7A-1 NMSA 1978, a law which prohibited the sale of alcoholic beverages on Sunday, is constitutional and is not in violation of U.S. Const. amends. I, U.S. Const. amends. XIV §§ 1, N.M. Const. art II § 11, or N.M. Const. art II § 18; thus, retailers were not entitled to prevail in their action for declaratory and injunctive relief against the Department of Alcoholic Beverage Control of New Mexico and certain government officials. Pruey v. Department of Alcoholic Beverage Control, 1986-NMSC-018, 104 N.M. 10, 715 P.2d 458, 1986 N.M. LEXIS 2849 (N.M. 1986).
Sanctions.
District court did not abuse its discretion in holding defendant, an attorney, in contempt of court for violation of a court order given pursuant to 5-1-12(2) NMSA 1978, directing the attorney to wear a conventional tie in court; because the evidence indicated that the attorney violated a court order, the district court had the discretion to exercise its inherent power to issue a contempt sanction to preserve its authority and maintain respect for the courts, and the exercise of such power did not amount to an unconstitutional restraint on the attorney’s right to free speech under U.S. Const. amends. I. State v. Cherryhomes, 1992-NMCA-111, 114 N.M. 495, 840 P.2d 1261, 1992 N.M. App. LEXIS 79 (N.M. Ct. App.), cert. denied, 841 P.2d 549, 1992 N.M. LEXIS 291 (N.M. 1992).
Speech.
Where plaintiffs failed to prove their claim that certain government officials initiated temporary custody proceedings to remove plaintiffs’ children in retaliation for plaintiffs’ complaint about improper conduct by a public official, plaintiffs were not entitled to recover on their claim that their First Amendment right to complain about and criticize public officials without retaliation was violated. Oldfield v. Benavidez, 1994-NMSC-006, 116 N.M. 785, 867 P.2d 1167, 1994 N.M. LEXIS 36 (N.M. 1994).
Unprotected speech.
Defendant’s argument that a greater degree of particularity was required for a search warrant which authorized a search of images of child pornography was rejected because he did not cite any authority to show that images depicting child pornography, minors engaged in sexually explicit conduct, sexual conduct between adults and minors, and young children in sexual poses constituted protected material under the First Amendment. State v. Hinahara, 2007-NMCA-116, 142 N.M. 475, 166 P.3d 1129, 2007 N.M. App. LEXIS 88 (N.M. Ct. App.), cert. denied, 142 N.M. 435, 166 P.3d 1089, 2007 N.M. LEXIS 528 (N.M. 2007).
OPINIONS OF ATTORNEY GENERAL
Analysis
Authority of municipality to suppress obscene materials.
Curfew ordinance.
The Carlsbad curfew ordinance, which made it unlawful for any minor under age 17 “to be upon any street, alley, road or public place within the city” between the hours of midnight and daylight on Saturday and between 11:00 p.m. and daylight on all other days, and provided exceptions for accompanied minors, minors on certain errands, at church, or attending a play, show or other exhibition, was unconstitutionally vague and overbroad. 1989 N.M. Op. Att'y Gen. No. 1989-33.
Authority of municipality to suppress obscene materials.
A municipality may suppress obscene materials because such materials are not protected by the First Amendment. Materials and speech which are not obscene, however, are entitled to the protection of the First Amendment, but may be subject to time, place and manner restrictions — usually zoning ordinances — so long as they are not unconstitutionally vague, and so long as they are based upon the municipality’s interests in health and safety, and not merely on a desire to ban otherwise protected speech. 1983-1986 N.M. Op. Att'y Gen. No. 418.
Education.
To ascertain whether a waivable fee for NMPIRG violates the First Amendment of the United States Constitution, the university must determine whether NMPIRG contributes to the university in its “marketplace of ideas” function. Deference should be given to the university’s judgment with respect to this question. If there is no compelling state interest in assessing the fee, then it was impermissible to exact the fee, even temporarily, from anyone objecting to the fee. A refundable fee does not resolve any First Amendment problems posed by its collection 1983-1986 N.M. Op. Att'y Gen. No. 143.
A school board may not require the posting of the Ten Commandments in classrooms, since this violates the Establishment Clause of the First Amendment to the United States Constitution. Because this conclusion is dispositive of the question, the attorney general opinion did not need to consider it further in the context of the state constitution or state law. 1979-1982 N.M. Op. Att'y Gen. No. 169.
Research References and Practice Aids
New Mexico Law Review.
Note: Twohig v. Blackmer: New Mexico’s Broad Protection for Trial Participant Speech and the Hurdles to Cross Before Imposing Gag Orders, Denise M. Chanez, 35 N.M. L. Rev. 587 (2005).
Article: Overbreadth Outside the First Amendment, John F. Decker, 34 N.M. L. Rev. 53 (Winter, 2004).
Comment: Freedom of Speech and Freedom from Student-on-Student Sexual Harassment in Public Schools: The Nexus between Tinker v. Des Moines Independent Community School District and Davis v. Monroe County Board of Education, Lynne Mostoller, 33 N.M. L. Rev. 533 (2003).
Note: Are There Any Limits on Judicial Candidates’ Political Speech After Republican Party of Minnesota v. White?, Catherine Ava Begaye, 33 N.M. L. Rev. 449 (2003).